WIDMAR v. VINCENT

Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

GARY E. WIDMAR, ET AL., Petitioners v. CLARK VINCENT, ET AL.

No. 80-689

October 6, 1981

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 o'clock a.m.

APPEARANCES:

TED D. AYRES, ESQ. Counsel, University of Missouri, 227 University Hall, Columbia, Missouri 65211; on behalf of Petitioners.

JAMES M. SMART, JR., ESQ., 1006 Grand Avenue, Kansas City, Missouri 64106; on behalf of Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Widmar against Vincent.

ORAL ARGUMENT OF TED D. AYRES, ESQ., ON BEHALF OF PETITIONERS

MR. AYRES: Mr. Chief Justice, and may it please the Court, as the Court knows, the case at bar presents issues which revolve around the religion clause of the First Amendment to the United States Constitution and the re-occurring question of its proper relationship with public education.

QUESTION: Just the religion clauses of the First Amendment?

MR. AYRES: It's our contention that it does, Your Honor.

QUESTION: How about the First Amendment itself, apart from the religion clauses?

MR. AYRES: Mr. Chief Justice, that is an argument that has been made by the respondents in this case. Hopefully, we will show in our argument to come that the free speech clause, the press and the assembly clause which were used by the Eighth Circuit were not properly used, and that the case should center around the religion clauses.

QUESTION: You concede, I take it, for purposes of argument that the entire First Amendment applies with equal force to the states as to the federal government.

MR. AYRES: Yes, Your Honor, that's no problem.

We're dealing in this case with a tax-supported state institution of higher education. Generally, the question can be summarized or posed as follows: Can or must a tax-supported state university permit regular religious worship services on its premises by a recognized student group?

The respondents in this case are members of a group or organization called Cornerstone. Cornerstone is and was a recognized student group of the University of Missouri, Kansas City.

In January of 1977, respondents sought to obtain the usage of a campus building for meetings on every Saturday night for two and a half hours for the following winter semester, which ran from January to May. Upon further inquiry by university officials, information was provided that indicated that respondents fully intended to conduct regular religious worship services in the meeting rooms that were sought.

The university was advised that a typical --

QUESTION: Would you give me the dates for which they sought.

MR. AYRES: Justice Blackmun, the dates sought which led to this case were from January through May of 1977.

QUESTION: And prior to that time, had the group met on campus?

MR. AYRES: Your Honor, the facts that were stipulated at the trial indicated that the Cornerstone group had met in university facilities prior to this time. However, it was also stipulated that neither the Chancellor nor the Dean of Students was ever aware that the Cornerstone group was using the facilities for actual religious worship services.

QUESTION: By facilities you mean indoors or outside?

MR. AYRES: Up to this point in time, Justice Blackmun, to my knowledge, the only usage that the respondents made of university facilities was indeed indoors.

The university was advised that the typical Cornerstone meeting that was sought would include the following elements. The offering of prayer, the singing of hymns in praise and thanksgiving, the public reading of Scripture, the sharing of personal views and experiences in relation to God by various persons, an exposition of and commentary on passages of the Bible by one or more persons for the purposes of teaching practical Biblical principles, and an invitation to the interested to meet for personal discussions.

QUESTION: The university system in Missouri has recognized the right of a gay rights unit, as I understand to meet on the campus and hold discussions and exchange views, has it not?

MR. AYRES: That is true, Justice Rehnquist. But I would submit in response to that question -- and it's petitioners' position -- that there is no constitutional prohibition with regard to that incident as there is with regard to religious worship.

QUESTION: How about the Young Marxists League, if they had one on the campus, would they be permitted to meet to make attacks on the Democratic system of government and express their views?

MR. AYRES: Mr. Chief Justice, I would assume that unless the meetings were such to advocate the immediate overthrow of the government and were such that would lead to imminent action, it's my belief that those such meetings would be permitted on campus.

QUESTION: So it's only religious groups that may properly be forbidden to meet on campus, in your view.

MR. AYRES: Justice Rehnquist, let me make it clear from the beginning that religious groups -- in this case at the University of Missouri, Kansas City -- has ten student groups that are recognized, official student groups, which could be said to have some sort of a religious affiliation. There is no general prohibition against their meeting on campus. They are free to use the meeting rooms and facilities of the university. Official student recognition also holds with it the possibility of funds to help support or fund a speaker or a meeting.

They're equally entitled to those benefits, as all other officially recognized student groups are, except to the extent of religious worship or religious teaching. And it is the position of petitioners that those sort of activities are prohibited not only by the First Amendment of the United States Constitution, but Missouri's constitution.

QUESTION: Well, would you elaborate on the distinction you make between the ten religious groups which are recognized to meet and religious worship or services?

MR. AYRES: Justice Rehnquist, I think we need to keep the case centered around the facts of this particular case. It appears to me, and it is petitioners' argument, that under the facts of this case there is no question, and it's undisputed in the record -- it was so found by the trial court and it's admitted by the respondents -- that they seek to use university facilities for religious worship services on a regular basis.

I would submit that as long as the meetings which they wish to seek are with regard to speakers, a meeting of the group for business purposes, that sort of thing, that is not within the purview of the Constitution of prohibition. But it is the position of petitioners in this case that the facts that were presented to the university left us with no choice but to prohibit the regular religious worship services that were sought.

QUESTION: Could they sign up Jerry Falwell for once a month for a regular appearance on the campus?

MR. AYRES: Without further clarification from this Court and based upon prior decisions of this Court, I would say the fact that -- if Mr. Falwell comes in on a regular basis, let's say a monthly basis, depending upon the content of his presentation or his speech, in my mind there would be serious constitutional questions about allowing him to come in on a regular basis.

QUESTION: How about someone like William Kuntzler or someone who had defended one of the groups in the late sixties?

MR. AYRES: Although that individual might be considered by some to be controversial, I do not see that touching on the religious aspect, Again, there's no intent to restrict the freedom of speech of the students or anyone else properly on the campus. The question is whether or not the campus may be used for religious worship services. I do not think that your example with regard to Mr. Kuntzler would fall into that category.

QUESTION: But isn't reading from the Bible a form of freedom of speech?

MR. AYRES: Justice Rehnquist, again, and relying on prior decisions of the Court, this Court has said in the Schempp case and others that the Bible is clearly an instrument of religion. But the university would not contend or not argue that the Bible may not -- or may also be considered a work of literature and may be studied for those purposes.

If someone were to read the Bible on campus individually as a part of their study, it seems to me that this regulation does not address that. But to say that to read the Bible in the context of the facts that we have in this case, to me stretches freedom of speech or freedom of assembly, stretches it way too far.

QUESTION: Well, what if the program consisted of a reading of, say, four chapters of one of the gospels, followed by a student discussion of the content of those chapter and criticism and exchange and so forth?

MR. AYRES: Based on that hypothetical, Justice Rehnquist, it would be my assumption that such activity would not be prohibited under this regulation, or it does not fall within the facts of the case now before the Court.

QUESTION: In one of the hypotheticals presented you said it would depend upon the content of what the speaker said. Do you not run afoul the free speech provisions of the First Amendment, entirely apart from the religion clauses, if you censor on the basis of content?

MR. AYRES: Mr. Chief Justice, I am aware of this Court's opinion in Mosley and others, which indicates that content-related restriction is violative of constitutional law. And I guess that's one of the reasons that we are before this Court; is whether or not that prohibition carries over into the religious area.

My argument would be, Mr. Chief Justice, that if such an argument is allowed to prevail, in other words, if someone could come in and say, I am here to speak about religion, or, I am here to assemble about religion, and that is a convenient excuse to allow religious worship services, then it is my contention that that makes a complete nullity of the establishment clause.

I do not think it's that easy, Mr. Chief Justice, to allow that to -- allow the freedom of speech or freedom of assembly clauses to come in in a case of this nature. It just goes too far, and I realize that that presents some tough or difficult questions, but looking at the history of the establishment clause and what this Court has said it means beginning in 1947 with Justice Black's famous opinion in the Everson case, I just -- my opinion would be that if the Court holds that activities such as these are permitted because of the speech clause or the assembly clause, the Court will be making a drastic retrenchment from its prior cases.

QUESTION: How do you distinguish what the Court has said was appropriate in terms of providing books to parochial schools and transportation to and from parochial schools, and that is certainly -- the arguments were made that that was an aid of sorts to religion and also tax exemption. Isn't that --

MR. AYRES: I do not think those cases are applicable in this case, Mr. Chief Justice. Obviously, the immediate distinction is -- and which the Court has made many times itself -- is that the benefits provided in those cases, for instance, the bus transportation case and the textbook cases, was an indirect aid and went primarily to the students involved and not to the parochial or private school which was involved.

It's my opinion that in this case it can be distinguished because here we have direct assistance that will serve to have the primary effect of advancing religion. I draw the distinction that it is a more direct benefit that is being provided than in the cases which Mr. Chief Justice has discussed.

QUESTION: What do you do with the provision of religious services in the military and the Navy and so forth?

MR. AYRES: Justice Stevens, I would address that question by the fact that this Court has spoken often of the fact that if an individual is deprived of religious worship opportunities by something that the government has done; i.e., a soldier in the field, a prisoner --

QUESTION: How about a church at Annapolis?

MR. AYRES: A prisoner in prison -- let me address your question. I think the Court has often held that that would be hostile to religion to not permit the opportunity for those individuals to worship just because of the fact that they have been deprived of their other already-immediate access to such services.

QUESTION: Well, what if the campus is out in the middle of the desert or something like that?

MR. AYRES: To answer your question about Annapolis, I would submit, Justice Stevens, that the military academies, including Annapolis, are special institutions, provided to train our military officers. And I would submit that the required Chapel at those institutions are part of the training which go into --

QUESTION: Well, it's voluntary, I assume. Attendance is voluntary, as it is in this -- I take it here, also, the student participation is entirely voluntary.

MR. AYRES: That's correct.

QUESTION: And the university doesn't either favor or disfavor the group.

MR. AYRES: No.

QUESTION: Mr. Ayres, the university draws no distinction between religious services in buildings and on its grounds, does it?

MR. AYRES: Justice Powell, that is a question that will be before the Court. The trial court found that the only question before it, based upon the pleadings, was the issue of whether or not it could be permitted in a university building. The Eighth Circuit went and said that they could address the issue of whether or not worship services on the grounds were also emanating out of this complaint.

I would submit to the Court and to Justice Powell that the regulation involved on its face and in its own language is applicable to buildings and grounds, and I think for --

QUESTION: Your petition covers both.

MR. AYRES: Right. And I think for purposes of this case, they are questions that need to be answered. We have obviously argued in our brief why that distinction is not important as far as --

QUESTION: May I follow up with this question. Is the university located in Columbia or Independence or where? St. Louis?

MR. AYRES: Justice Powell, the University of Missouri is a constitutionally-established institution. It is one university with four campuses.

QUESTION: Where is this one?

MR. AYRES: This campus which this case arose out of is located in Kansas City, Missouri.

QUESTION: Well, do you think a religious service could be banned in a public park in Kansas City? Or, as someone suggested, the Reverend Falwell from speaking there?

MR. AYRES: Justice Powell, it's not clear to me from the cases -- I don't know that that question has ever been directly answered. I would say that depending upon the prior usage of such park and depending upon its openness for events other than religious worship services, --

QUESTION: Let's assume it's exactly like the student building involved here; it's open for all other groups, as your answers to other questions have indicated. Could the city foreclose use for religious purposes of a public park of that character?

MR. AYRES: Justice Powell, it would be my opinion, responding to your question, that if it was -- if the group involved was seeking to hold religious worship services in the park on a regular basis, to the extent they were sought in this case, it is my opinion that Kansas City, based upon establishment grounds, could prohibit such meetings.

QUESTION: What about services which begin at the Lincoln Memorial sometimes with prayers and hymns being sung, and then even more specifically a religious service, the Mass held on the Mall when Pope John Paul II was here several years ago?

MR. AYRES: Mr. Chief Justice, I think we have tried to address those points in our brief. I think that the National Mall where both of the activities which you referred to would take place has gone beyond and cannot be fairly compared to the campus of a state university. It is obvious that the National Mall is used for matters, national matters of every spectrum, and to compare that to the campus in this case is not a fair one.

I would also submit with regard to the Pope's visit, which I think the mere special occasion had a lot to do with the decision, but I would also point out that Judge MacKinnon noted the issue in his concurring opinion where he said that to allow these on a irregular basis does not present a problem. But if it was sought to hold religious worship services even on the National Mall on a regular recurring basis, such would present establishment clause problems.

QUESTION: How about the Christmas tree on the Mall every Christmas?

MR. AYRES; Justice Brennan, --

QUESTION: And the creche.

MR. AYRES: I think those questions have been answered to some extent by the fact that the Christmas tree, and again to some extent the creche, have gone beyond the religious significance. That Christmas has become, in effect, a national holiday, a holiday which is equally meaningful to all of us, no matter what our religious affiliation is, and so I think those cases are not pertinent, either.

QUESTION: Mr. Ayres, does it disturb you that members of the Congress of the United States have prayer breakfasts in the National Capitol Building on a regular basis?

MR. AYRES: Justice Blackmun, when you say prayer breakfast, I guess I'm not quite sure what you mean --

QUESTION: At which Scripture is read, prayers are offered, papers are given.

MR. AYRES: To being the meeting, Justice Blackmun? Or is it -- Let me respond to your question, if I may --

QUESTION: Of course, the Chaplain daily gives prayers in each House.

MR. AYRES: To respond to your question the best way that I may, I think that there are many decisions which indicate that prayer or an acknowledgement of God before a public meeting are suitable in that they serve to set the tone, get the meeting started out in a properly appropriate manner, and I would submit that this situation falls into that category.

QUESTION: Well, Mr. Ayres, I gather some of us at least have thought that in God we trust above the Speaker's bench and the prayer breakfasts and other exercises of that kind fall into the category of political questions, not judicially reviewable in any event.

MR. AYRES: I think that's right, Justice Brennan.

QUESTION: Mr. Ayres, you suggested with respect to the Mass on the Mall that the distinction is between a regular recurring event, as was involved here, and an incidental or irregular event. But as I understand your regulation, you wouldn't permit these people to meet even once.

MR. AYRES: That is correct, Your Honor.

QUESTION: So I really don't think that's a valid distinction for purposes of defending your own regulation.

MR. AYRES: Well, let me say, Justice Stevens, that again in the context of this case, a one-time meeting was not sought. It was clear that they sought a regular weekly meeting place for their services.

QUESTION: I understand, but your regulation would prohibit a one-time meeting, if I understand the record correctly.

MR. AYRES: If it was known that the meeting was a religious worship --

QUESTION: If people did give you advance notice of exactly what they intended to do, which would seem to be appropriate.

MR. AYRES: That's correct, Your Honor.

QUESTION: Mr. Ayres, I assume you were at 10:00 o'clock this morning when the Marshal of the Court in announcing the Court pronounced, in effect, a very short benediction when he said God save the United States and this honorable Court. Is that any different from a ten-minute prayer?

MR. AYRES: Mr. Chief Justice, I would argue that it is, it is indeed. Again, I would submit to the Court that this is a ceremony to begin this auspicious occasion, to get a proper frame of reference of mind for all those involved.

I would submit to the Court that the Ten Commandments stand above on the building. I think there's a secular purpose for that because the other famous historical origins of long are also presented. But I would remind the Court of its opinion in Stone, that the Ten Commandments could not be posted in elementary or secondary schools.

QUESTION: Mr. Ayres, I suggest to you that you -- I don't know whether you'll win this case or not, but I would think you could win it without having to claim that if the university allowed these meetings that it would be an establishment.

Your question is whether they are permitted, rather than required, to ban these meetings. I mean, it could be that the university could do it either way; they could allow them or not allow them, without violating any part of the First Amendment.

Now, I would think all you have to do is argue that it's permissible for the university to stay as far -- not as far away from religion as it wants to, but at least this far, that it could take pains to avoid any problems like this, and you wouldn't need to prove or admit or claim that if they were permitted it would be an establishment.

QUESTION: Justice White, I can only wholeheartedly agree, and this is the --

QUESTION: I know, but you've been arguing all the time that --

QUESTION: But you haven't had any chance to argue.

MR. AYRES: I've tried to answer questions, Justice White.

QUESTION: Exactly, exactly.

(General laughter.)

And I take it that Congress could cease having prayers every day or we could probably cut out the last part of the -- cut the benediction out of this without violating the religious clauses or the free speech clauses, either.

QUESTION: Mr. Ayres, another thing, when the Attorney General of Illinois argued the evidence in the case he said that if we ruled against him, we would have to rip down these Ten Commandments up here. And Mr. Justice Jackson said, quote, "I think we can do it without that." And he did, right?

MR. AYRES: Yes, sir.

QUESTION: So why argue about these Ten Commandments. They're still up there.

MR. AYRES: That's true, Your Honor.

(General laughter.)

QUESTION: He didn't get them down, so I don't see how you're going to get them down.

MR. AYRES: Your Honor, it's certainly not my intent to get them down.

QUESTION: Mr. Ayres, is the Attorney General of Missouri in this case at all?

MR. AYRES: No, Your Honor. The University of Missouri, our Office of General Counsel is handling the case itself, and the Attorney General's Office is not involved as an amicus or any other way.

QUESTION: Well, is the Office of the General Counsel representing the views of the Attorney General of Missouri?

MR. AYRES: No, sir. We would argue that our viewpoint is upheld by several attorney general opinions, Your Honor, but we do not presume to be here on behalf of the Attorney General's office.

QUESTION: Well, but you're here -- the university is constitutionally organized and the Attorney General is not the lawyer for the university.

MR. AYRES: That's absolutely correct, Justice White.

QUESTION: And insofar as the state of Missouri is concerned, with respect to the university you are the attorney general.

MR. AYRES: That's right.

QUESTION: Is that clear as crystal?

MR. AYRES: In our opinion it is, Justice Blackmun.

Let me just indicate a couple of things before I sit down. As Justice White has indicated, we believe that there are other grounds upon which we can win this case; primarily, the fact that there is no indication that the free exercise rights of the students involved in this case nave been infringed. This was a specific finding of the trial court, and I believe that if the Court will look at the record there is no indication that these students have an absolute cardinal precept of their religion that they must worship on university premises.

QUESTION: But isn't it a familiar statement from any of our cases that just because the state allows you to exercise rights of free speech in some other place, then you want to exercise them, is not a defense to its refusal to allow you to exercise them where you do want to exercise them?

MR. AYRES: Would you repeat your question, Justice Rehnquist?

QUESTION: Yes. In other words, it would not be enough under our cases under the freedom of speech clause, I take it, to say that you can go down to the marina every morning and have a parade if you want to, when the mall is available and has been used for freedom of speech demonstrations of all sorts.

MR. AYRES: Some of the cases of this Court, Justice Rehnquist, have indicated that because a right is available somewhere else, you cannot foreclose that right at another place. I would submit to the Court that fact situation was not applicable here under the facts of this case where it was clearly a religious worship service that was sought, and so it would not be applicable to this case.

I am going to sit down at this time to allow me some rebuttal.

CHIEF JUSTICE BURGER: Mr. Smart?

ORAL ARGUMENT OF JAMES M. SMART, JR., ESQ. ON BEHALF OF THE RESPONDENTS

MR. SMART: Mr. Chief Justice, and may it please the Court, I want to just remind the Court here that as the Court is well aware, the university has the burden in this case of justifying this regulation, On its face, the regulation restricts freedom of expression in what would appear from the very facts to be a public forum. Even if it were not a public form it restricts one category of speech, appears to be invidious discrimination on speech and the university has the burden of establishing here, we do not have the burden. They have to justify their regulation.

QUESTION: Could the university preclude the use of those meeting room for all purposes if it wanted to, except classes of the university?

MR. SMART: The university -- I think this Court, if that case were to come before it, the Court would have to look at the facts of the case and see, number one, if a free exercise claim was asserted, did this constitute a burden on the free exercise of religion because of the nature of the campus or did it inhibit academic freedom of the students and freedom to inquire because they had no opportunity to have meetings or to invite outside speakers on any subject, and the court might well find that such a rule that completely forbids any special interest group meetings might be unconstitutional on those grounds.

On the other hand, --

QUESTION: Even if justified, Mr. Smart, by a compelling state interest?

MR. SMART: Well, that is the key, Your Honor.

QUESTION: Yes, but it has to be a compelling state interest, I take it.

MR. SMART: It has to be a compelling state interest, Your Honor.

QUESTION: Did I correctly understand one of Mr. Ayres' arguments to be that the compelling state interest in this instance was the desire to avoid any of the complications that might lead to the establishment of a religion? Would you regard that as a compelling state interest?

MR. SMART: I think that the establishment clause could be a compelling state interest. You have a teacher in front of a classroom who says, I want to exercise my free speech rights, and the principal says no, you may have your free speech rights but in this case the establishment clause is a compelling state interest that prohibits you. I think it could be.

In this case, though, we are not talking about a teacher speaking; we are talking about private individuals engaged in voluntary activities among themselves.

QUESTION: Even so, I gather, if I understand Mr. Ayres argument, it is that -- I know, but to permit this sort of thing is to expose the university to possible problems under the establishment clause of our being accused of favoring religion and therefore violating the establishment clause. And our compelling state interest is to avoid that possibility. Wasn't that his argument?

MR. SMART: That's his argument apparently, Your Honor. We contend that the university, while desiring to avoid establishment clause problems, marches straight into establishment clause problems by having the primary effect of inhibiting religion.

QUESTION: Let me ask you, suppose a group of students organize a denomination of a particular religion on the campus, and they say well, we have to have someplace regularly to meet like others. And they have a minister who will come and preach to them at these meetings, and they want the university to let them use, say, one of its buildings as their church. And they frankly say, we can't afford a church but if we had a church, we would meet in it, but we don't, and we want to use your building as a church.

Now, you would be making the same argument, wouldn't you? Or would you?

MR. SMART: Well, Your Honor, I might not necessarily be making the same argument. We would have to look at the facts of that case.

QUESTION: Well, you know all the facts right now.

MR. SMART: Okay. Well, the case we're dealing with here --

QUESTION: No, just answer my question.

MR. SMART: It will be basically the same argument provided --

QUESTION: And you say the university would be required to let them hold regular church services, use their building as a church. That's your argument.

MR. SMART: Provided they were treated as any other special interest group.

QUESTION: Exactly. But your argument would say that the university would be required to use their building as a church.

MR. SMART: That's exactly what we're saying, provided they were treated like any other special interest group.

QUESTION: Well, the university, as Justice Brennan suggests your colleague is arguing, the university doesn't want to get that close to religion, and it wants to stay more neutral, and it doesn't want to have its facilities -- the university would be paying the light, the heat, everything else.

MR. SMART: Well --

QUESTION: No one charges enough to student groups to pay depreciation or anything.

MR. SMART: We don't deny there would be some financial aid here, we don't deny that at all. What we're saying --

QUESTION: Would there be anything to interfere with the university saying that there would a fixed fee for the use of the room by any group including this church group that is hypothesized?

MR. SMART: There would be absolutely nothing wrong with a regular fixed fee that was applied equally across the board to all special interest groups. If they wish to subsidize the light and heat and so on that could easily be done by a fee. However, I think the key is equal accommodation. In this case there is a distinction between sponsorship and accommodation that the university seems to completely overlook.

When a university invites Billy Graham or someone on campus and has him speak, then you've got some sponsorship involved, then you've got some cooperation and involvement of the government in this religion.

Here, you have the university doing the exact opposite. The government is saying religion is not required to be on campus, even though we must be responsive to the non-academic special interest needs of these students. As the university itself says in its documents, nevertheless, religion is not of such a level that we have to allow students to voluntarily engage in religious activities on campus.

QUESTION: May I ask, Mr. Smart, there is a rather rigid Missouri constitutional provision, is there not, dealing with --

MR. SMART: That's correct, Your Honor.

QUESTION: Precisely what does that provide?

MR. SMART: Okay. The constitutional provision, without reading it, provides there will be no direct or indirect aid to religious activities. There's another provision which says no one shall be compelled to erect or support any place of worship.

QUESTION: Now, do those provisions add anything to the federal constitutional argument that Mr. Ayres has been making? Do they help him any?

MR. SMART: In this case, Your Honor, I do not believe they do. I do not believe they can be applied to this case. The university -- I mean, the Missouri Supreme Court has, to my knowledge, the latest pronouncement on that provision was in 1976 in a case in which it allowed tuition grants to university students who would then attend sectarian universities in Missouri. And the court in that case expressly followed the decision in Roemer vs. Board of Education of this Court.

There are some decisions with a lot of language about strict separation of church and state and so on, but there's no indication that the Missouri Constitution was ever intended to say that people can't use public property for religion in the same way they can use --

QUESTION: In any event, I gather the issue we have here has not been raised before the Missouri state court under --

MR. SMART: That's right, Your Honor, it's not been decided in the state of Missouri that individuals cannot use public property for religion the same way they can use -- the same way other groups can use that public property.

QUESTION: What if the Missouri Constitution contained a clause saying that there shall be no requirement of freedom of speech or that the state shall allow freedom of speech in its state and it shall regulate it as it sees fit. Would you think that that would be a compelling state interest for defense against a claim that the federal First Amendment was being violated?

MR. SMART: There is a Missouri Constitutional provision, if I understand your question -- there is a Missouri Constitutional provision that grants freedom of speech to the citizens of Missouri, the same as the federal constitution. And of course, freedom of speech is one constitutional value that weighs very heavily here, as well as freedom of association and free exercise of religion.

All those values are on this side. There may be some establishment considerations on this side of the scale. We're talking about some incidental aid to religion from a neutral policy that says special interest groups can meet on campus and do their own thing. Self-initiated activity is what the university says and what it says it encourages.

QUESTION: But what if a state had a constitutional provision diametrically opposite to the First Amendment that said the state shall be able to freely regulate discussion of public topics? Would you think that was a compelling state interest if the state were charged with violating the federal First Amendment?

MR. SMART: Well, Your Honor, the Constitution of the United States is the supreme law of the land and no state is entitled to legislate away fundamental freedoms, and particularly in the area of religion and speech. These things were placed beyond the whim of legislative majorities. They are not to be dealt with by local legislators; they are controlled by the Constitution.

QUESTION: Since 1925.

MR. SMART: Yes, Your Honor.

QUESTION: Mr. Smart, you have argued, I believe, that by not permitting the group to meet on campus for its services, that some stigma attached in the minds of the students by virtue of that. Would the reverse be true, and by allowing the group to hold its sessions on campus does that imply some kind of sponsorship or approval by the university?

MR. SMART: It does not imply approval. If it does, then the university has some difficulties, because as we noted in our brief, the university has allowed, while Cornerstone was off campus the university has allowed transcendental meditation, which has been held to be a religion by the Third Circuit. They allowed Sri Jim Noy, Indian spiritual master who is an Eastern mystic. They even -- the university even sponsored a film with this on campus.

So if it implies approval, then thereby their own regulation they're violating their own regulation themselves. Secondly, it really doesn't imply approval because the university has declared no sponsorship. Footnote 44 of our brief refers to the fact that the university says, we'll not allow our name to be used by any of these groups.

In other words, they don't want Cornerstone going out and saying we are the University of Missouri Cornerstone group and we're doing such and so. The university says, Keep us out of it; we don't sponsor them. If they want to make a bigger sign and put it on top of Jesse Hall in Columbia, Missouri, they can do that.

QUESTION: Mr. Ayres has conceded that the Young Communists League or the Marxist Society could meet, and surely, the university wouldn't undertake to sponsor or endorse them.

MR. SMART: I trust they would not undertake to do that, and I think that also relates to the financial aid argument here. If there is financial aid to religion by this -- by a neutral policy that would allow religious groups on campus, then there must be financial aid to the Young Marxist group.

QUESTION: Mr. Ayres says that these are spot times and it's not regular.

MR. SMART: Well, I don't know that there's any evidence in the record as to whether they're regular or not. I would assume that most of the --

QUESTION: But that man from India didn't come over here a very week, did he?

MR. SMART: No, that's correct. But I think the key here is equal accommodation. Now, regularity could be a problem, as I think MacKinnon noted in the O'Hair case and as the Court in the Arizona University Stadium case involving Billy Graham; regularity could be a problem. You have to look at the facts. Does that regularity, when you look at the facts, does it connote sponsorship.

If it does not because all the other groups are meeting regularly and there's no particular favoritism involved, then you have no sponsorship, you have no establishment clause violation.

If there's any preemption of space -- if Cornerstone would walk up and say we want a five-year lease, we want a free, five-year lease on such-and-such a room, and the university says okay, we've got to give it to you. So Cornerstone has that five-year lease, and other groups come along and say hey, we'd like to use that room once in a while, too, you Know, and the university says no, they've got it. Then you might have an establishment problem because there would be favoritism toward religion.

QUESTION: Mr. Smart, does the university have a specific regulation with respect to non-campus groups; those that may come in casually?

MR. SMART: The university's policy, as I understand it and Mr. Ayres can correct me if I'm wrong, is that the university allows non-student groups to come in and use the facilities. I think they generally charge for non-student groups, but I --

QUESTION: On an ad hoc basis.

MR. SMART: On an ad hoc basis.

QUESTION: And is there any specific regulation?

MR. SMART: I'm sure there's a regulation that makes it available, I'm not familiar with that regulation, other than the one that says they cannot be used for religious services by any student or non-student group.

QUESTION: Is it conceded in this case, or does the record show that no outside religious group would be allowed to hold any sort of meeting on the campus?

MR. SMART: Well, I think the facts would show -- and Mr. Ayres can correct me if I'm wrong -- that prior to the invocation of this regulation in January 1977, probably religious groups were -- in fact, I know religious groups were using, outside religious groups to some extent, were using the facilities there.

QUESTION: Outside groups.

MR. SMART: Outside groups, apparently on a payment basis, on an irregular basis. I may be wrong about that.

QUESTION: And then the university decided to change its policy.

MR. SMART: The university enacted this regulation in 1972 but began enforcing it in January of 1977, and in this case it is significant that it was applied not only to the use of the buildings, but also, to the use of the grounds for a small group Bible study, as was stipulated in the facts at the trial level in the case.

QUESTION: Would you agree that a university has more control over the use of its campus than a city does over a public square, provided the control is exercised uniformly?

MR. SMART: I think that there could well be a distinction in a given case, Your Honor. I think in this case, the university really exercises no more control over its space than a park that has shelter houses and requires people to call in and reserve those shelter houses in advance. I think that's about the degree of control we have here.

QUESTION: But whatever the degree of control, counsel, could the university discriminate as between and among groups on the basis of the content of what took place in the meeting?

MR. SMART: Absolutely not, Your Honor. This Court decided that in Healy vs. James, the SDS case, in 1972 and made it very clear in case there was any doubt before that the university has no business in --

QUESTION: Yes, but in Healy we didn't have any implication of the religion clauses.

MR. SMART: That's correct, Your Honor.

QUESTION: Well, doesn't that make a difference? I mean, this is a different issue, isn't it, than we had in Healy?

MR. SMART: It doesn't a void the establishment clause issue for us; we've still go to get around that.

QUESTION: yes.

MR. SMART: Which I believe we do. We don't believe this is the type of aid -- if there's aid to religion it's not the type of aid that the founders of our country, the drafters of the Constitution and the First Amendment, intended to prohibit. Because it's like a public park; there's no money grant involved, no exchange of money. Our country has a long history of permitting religious services on public property including university property. There's no competition or entanglement between groups here. Space can be allowed on a first come/first served basis, and the Cornerstone group or any other religious group would only be receiving the same aid and assistance as any other group.

QUESTION: I suppose, too, Mr. Smart, in applying this regulation somebody in the university has to make a judgment whether a given group is a religious group, does it not? I mean, Krishna, all the several different kinds of groups.

MR. SMART: That's right, Your Honor.

QUESTION: Does that implicate some establishment problems, too? I mean the very regulation.

MR. SMART: We believe that that is an additional factor. We believe that, on its own, without the primary effect of inhibiting religion, might not be enough. But certainly, there is a greater tendency toward excessive entanglement in religion to have a policy --

QUESTION: Is Scientology a religion, for example?

MR. SMART: I think that my inability to answer that very well is an example of the difficulties that -- I would suspect it probably is a religion. But --

QUESTION: Some courts have held that it is not, but there's no uniformity. Isn't that the situation?

MR. SMART: I would suspect that's correct. I really have not done research in that area specifically, Your Honor. But certainly, when an administrator has to decide if something is religious because they say they are such-and-such a group; or B, decide whether they're -- you see, this regulation purports to allow business meetings but not prayer meetings.

Now, is the university going to go down and make sure that nobody gives an opening prayer or that the prayer is no longer than three minutes before they start the business meeting? To avoid those kind of dangers, the university would have to monitor the meetings, censor out the conduct --

QUESTION: I take it, for example, a Roman Catholic Church couldn't have a Mass under this regulation, but what about the Holy Name Society having a meeting?

MR. SMART: If the Holy Name Society were going to only have a business meeting, then presumably, the university would let them. But we're contending --

QUESTION: But the university would have to decide whether it was a religious meeting or not, I take it, to apply this regulation.

MR. SMART: Also, you have an interesting question, whether a business meeting is not an integral part of the activities of the Holy Name Society, which would probably be a pervasively religious group, and we get back to some of the Lemon vs. Kurtzman thinking.

QUESTION: But if the university rents its facilities to off-campus groups for a fee, your position would be, I take it, that if the Catholic Church wanted to rent one of its buildings on a regular basis to hold its church services, that the university would have to rent it.

MR. SMART: Well, we think --

QUESTION: I've asked you this question before, I take it.

MR. SMART: Non-students may stand in a little different footing than students because --

QUESTION: You mean the university could rent to some outside organizations but refuse to rent a building to the Catholic Church?

MR. SMART: Non-students as a group may stand on a little different footing, but where the university has opened up a forum --

QUESTION: So your answer is they must rent the building to the Catholic Church.

MR. SMART: Our answer is that they must, Your Honor, that's correct.

QUESTION: But they could exclude all off-campus groups, could they not?

MR. SMART: I believe they could probably exclude all off-campus groups. Presumably, there are a lot of facilities in the community that are available for off-campus groups to use.

QUESTION: Could there be any question that the university could say that the facilities are limited to student body groups?

MR. SMART: I don't have any question about that, maybe the Court does. But I think the university would have the right to do that.

QUESTION: Is there any question that the university could give an advanced degree in one or more religions?

MR. SMART: I know there are a number of state universities, and the University of Missouri has an interesting arrangement with the Missouri School of Religion, which is a separate entity but grants degrees, I believe, from the University of Missouri. And apparently, public universities do sometimes award degrees in religious studies and things of this nature.

QUESTION: Mr. Smart, do you see any differences between the circumstances here involving a university and the use of its premises as opposed to that of a high school or a grammar school?

MR. SMART: I think when we look at the fundamental principles underlying the First Amendment, the principles of volunteerism, neutrality, we may find the younger we get -- for instance, in Stein vs. Oskinsky, a case in the briefs which was a kindergarten class where some parents said we want our kids to be able to have voluntary prayer in the kindergarten. And Judge Friendly said well, that, of course, is -- there's no such thing as voluntary anything in kindergarten. And I think when you consider age in that factor I don't know that it's so easy as saying high school is different from college or anything. I think you have to look at the circumstances. Age is one factor. And is it self-initiated activity and this type of thing.

QUESTION: Has this Court made a distinction between universities and high schools and grade schools already?

MR. SMART: This Court has many times in its aid to education cases drawn a distinction, particularly where the aid is going to a university which is church-related, and the Court has noticed that the chances of that church-related institution using that to indoctrinate or impose its beliefs on students was very limited, very small. We think that's a little bit different in this case because here we're talking about a meeting of students; we're not talking about an authority structure. We're talking about a voluntary meeting that student interested can come to if he wants to but there's no requirement that any student attend this meeting. It's not under the exclusive control of any religious body.

We submit that a neutral policy would be like the tax exemption in the Walz case. A longstanding practice, the effect of allowing tax exemptions for religious as well as other entities has not been to establish religions. And the opposite, if a state were to deny tax exemptions to religion there might be a risk of excessive entanglement. There would be a greater tendency for entanglement.

We think those are all factors that merit the Court's consideration here. In this case --

QUESTION: Do we have anything comparable to the tax exemption history in the way of a custom of allowing religious meetings --

MR. SMART: Yes, Your Honor, we do. In our brief we've referred to the fact that Thomas Jefferson encouraged and allowed the sectarian religious instruction on the grounds of the University of Virginia in 1822, which was when it was opened, or shortly thereafter. There are a number of -- well, I would submit that almost every university in this country has allowed at one time or another religious activities on campus.

In 1891, the University of Illinois upheld a provision where the university actually sponsored the chapel on campus. It wasn't a student group.

QUESTION: Mr. Smart, when Thomas Jefferson conducted the activity at the University of Virginia, wasn't that before the Fourteenth Amendment had been used to apply the First Amendment freedoms to the state?

MR. SMART: Yes. That is correct, that was before the Everson case which was the first case that really, apart from the Cantwell case, applied the Fourteenth --

QUESTION: So that's not really a very good argument, is it, for your --

MR. SMART: Well, I think it's a very good argument when we're saying what is the history. I'm not saying that what Thomas Jefferson wanted to do would be correct law today, but I'm saying that's the history. And I'm saying we can look at that and see has there been an establishment of religion, or has there been simply an aid to the free exercise of religion.

QUESTION: I thought you were saying that what Thomas Jefferson did is the law today.

MR. SMART: Well, we'd have to look at the exact facts of that. I think that what he did might not be because what he recommended was that professors meet with these students and teach these sectarian principles with them, and that would seem to be more of an establishment of religion than we're asking for right here. And I think this Court might not allow us to go that far.

But we think the main problem with this regulation is that it is an invidious discrimination against religion. A neutral policy has no primary effect of doing anything except promoting inter-communication between students. In McDaniel v. Paty the court struck down the Tennessee requirement concerning eligibility of ministers to hold public office, and I note in that case that Justice Brennan and Justice Marshall held that that provision violated the establishment clause. And I submit to you that this case is a better case to hold that the regulation in this case violates the establishment clause than that one, because of the fact that religion is so clearly given second-class status, it is stigmatized, it's considered as not worthy of being treated the same as the other activities.

It's a fallacy to say that when you omit something you say nothing about it. In this case, the university is propagandizing and saying religion does not need to be allowed on the campus. We'll meet all the other needs but we will not meet a religious need except maybe we'll favor a few certain religions that are not traditional western religions. We'll allow some eastern religions and things like this, but we will not allow -- .

And the state has decided that religion is compartmentalized and can be off campus, and they have regulation which is arbitrary. It allows worship in chapel at Columbia campus. No chapel at UMPC, and I'm not sure why religion has to be confined to a chapel anyway. It's over broad, it by its terms would appear to apply to a bull session in a dormitory late at night where three or four people are talking and one of them maybe has been to Bible school before, so he knows more and so he begins to expound. It would appear to apply to that.

This Court has given the highest degree of protection to religious expression in the past in cases like Tucker vs. State of Texas, Murdock vs. Pennsylvania, Cantwell vs. Connecticut and on and on, and we submit that the government in this case has no business deciding that in a public forum that religion is not entitled to the same treatment as other forms of expressions, even though it is public property.

We submit that if the fact that it's public property bothers the Court to some extent, keep in mind the fact that the key is equal accommodation, no favoritism to religion, no sponsorship of religion. Just equal accommodation.

This Court's been very sensitive in the past to government actions promoting religion. For instance, Stone vs. Graham; so sensitive, in fact, that you reversed the decision of the Kentucky court without even hearing arguments; you reversed it outright on petition for cert. I submit that this Court also can be just as sensitive to government hostility to religion as it has been for government promotion and sponsorship of religion. Particularly at the university, which is the marketplace of ideas, and religion should be allowed to find -- to be placed in its own spectrum by the marketplace in which it exists. The students will put it where it needs to be.

Thank you, Your Honor.

CHIEF JUSTICE BURGER: Do you have anything further?

ORAL ARGUMENT OF TED D. AYRES ON BEHALF OF PETITIONERS -- REBUTTAL

MR. AYRES: I would like to say first of all that with regard to Thomas Jefferson, I might point out for the Court if it's interested in history that when Thomas Jefferson was a member of the Board of Visitors at William and Mary when it was a state institution in 1779, Thomas Jefferson was instrumental in having religious instruction outlawed at William and Mary.

I would also point out that what occurred at the University of Virginia --

QUESTION: Well, religious instruction might be a little different from allowing a religious meeting.

MR. AYRES: That's absolutely true, Your Honor.

QUESTION: May I just ask one question. I gather, do I not, that your principal argument is that the compelling state interest that justifies this regulation is a desire to avoid the problems that otherwise might arise from establishment.

MR. AYRES: Justice Brennan, I think that is fair, that the compelling interest not only of the United States Constitution establishment clause but the Missouri strong interest in avoiding --

QUESTION: Well, does the Missouri constitutional provision help your federal First Amendment argument at all?

MR. AYRES: To some extent. In line with what Justice Rehnquist was going to, I certainly would not argue to the Court that Missouri could constitutionally violate or infringe upon freedoms guaranteed by the Constitution. But I think it goes along and strengthens our argument.

QUESTION: On compelling state interest?

MR. AYRES: Yes.

QUESTION: Well, it helps you in saying that at least the interest is bona fide. It's not a recent dream.

MR. AYRES: Exactly. It's not an invented thing.

I might also point out that with regard to the chapel that was mentioned at the University of Missouri at Columbia, it was built entirely with private funds and is not a situation where regular religious worship occurs.

CHIEF JUSTICE BURGER: Thank you, gentlemen, the case is submitted, but Justice Rehnquist has one more question.

QUESTION: Counsel, I understood this regulation was enforced only from 1977.

MR. AYRES: Your Honor, I would submit, Justice Rehnquist, that the regulation has been in effect since 1972. It was only in 1977 that an occurrence occurred where it needed to be enforced. As the record shows, the university had no knowledge that any meetings were taking place or occurring that had elements of worship in it.

QUESTION: But it's not of ancient vintage, then.

MR. AYRES: I would submit in its particular form it's been around since 1972. I think some form of the regulation has been on the books prior to that.

CHIEF JUSTICE BURGER: Thank you, gentlemen.

(Thereupon, at 12:00 p.m. the oral argument in the above-entitled matter was adjourned.)